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Tuesday, 30 March 2004
Page: 22311


Senator TCHEN (7:22 PM) —I agree with Senator Bartlett that immigration and migrants are important to Australia. That is why the Migration Legislation Amendment Bill (No. 1) 2002 is important as part of the law that underlies our immigration program. Senator Bartlett has gone through the bill in some detail in his speech; I do not intend to do the same. Instead, I shall record the fact that in his second reading speech the then Minister for Immigration and Multicultural and Indigenous Affairs said that the purpose of this bill is to make a number of amendments to and enhance the integrity of the act.

This bill deals with a simple issue—the integrity of our immigration law. Specifically, it deals with the vexed question of how to manage the welfare of people who come to Australia claiming—but not always proving—to be refugees. While their claims are being established, or more commonly when their claims have been disproved, we need to manage their welfare consistently with regard for human rights and at the same time maintain the integrity of our migration program and protect our national interest. But the Labor opposition and the Democrats have made the issue complex by proposing a number of amendments which would, in fact, put at risk the balance of Australia's proven anti-people-smuggling measures and thus threaten the very integrity of our immigration program.

At the time of the 2001 census, there were 4.1 million Australians who were overseas born. More than half of them—2½ million of these first generation Australians, these Australians by choice—were not only migrants but migrants from a non-English-speaking background. Ninety-nine per cent—indeed, perhaps 99.9 per cent would be a more accurate figure—of these good people would have come to their adopted country, their home by choice, after meeting Australia's strict but fair immigration selection criteria, whether they came as skilled migrants, through family reunions, as business migrants or as refugees through our exemplary humanitarian resettlement program, which has to date brought more than 620,000 refugees and displaced persons to settle in Australia.

Having met these criteria themselves and being beneficiaries of Australia's fair and objective migration law, these Australians have a right to know that these same criteria are still applicable and that the integrity of our law remains intact. They have a right to know when, how and why these criteria are changed and, more importantly, they want to be assured that any changes will be for the good of Australia. There is a special context in which I rise to speak tonight—I do so on behalf of these 2½ million Australians, migrants from non-English-speaking backgrounds, to consider how and why it is proposed to change the migration legislation this time.

In particular, I wish to consider the changes proposed by the Australian Labor Party. I know that the Democrats have also proposed a number of amendments, but I shall pass over these since Senator Bartlett has already indicated general support for the bill and since the Democrats have no real prospect of taking government and cannot be expected to be responsible. The Labor Party, on the other hand, is a pretender for government and must be accountable for what it proposes. The Labor proposals, therefore, need to be considered for what they are worth.

Properly scrutinised, only one conclusion can be drawn about these Labor amendments. They are merely a smokescreen for Labor's lack of ability to add value in the face of the strong measures the government has already introduced in response to the scourge of people-smuggling. These amend-ments fall into two sets. Those in the first set ostensibly seek to strengthen the already strong and effective anti-people-smuggling measures the government has in place.

However, by proposing penalties that are disproportional to accepted standards, these Labor amendments actually enable more lenient penalties in application. For example, section 229, 230 and 232 offences are strict or absolute liability offences. Proof of fault is not required for these offences. Given that, the new penalties proposed by the Labor amendments are draconian to the extreme and thus recognised will simply be ineffective. Vessels are currently forfeited under section 261A of the Migration Act if the master and/or owner knows that the vessel has been used to smuggle people to Australia. This is a discretionary power so that, if it becomes obvious that seizing such a vessel means that its passengers will have to be brought to Australia's migration zone for their refugee claims to be processed, then other options may be exercised. The Labor amendments, on the other hand, will ensure that any passengers on such a vessel will have their refugee claims processed in Australia, giving them access, regardless of the merit of their claims, to the Australian legal system outside of the international refugee assessment process. Such an outcome clearly will be contrary to Australia's national interest. It is certainly worth noting that the Labor Party has so far failed to own up to this dangerous implication of its policy.

The proposal of mandatory forfeiture regardless of prior knowledge will also lead to the ludicrous outcome of making a 747 aircraft carrying one unauthorised arrival subject to mandatory confiscation. This is a manifestly unworkable proposition. Labor penalties clearly depart from the established judicial benchmarks on many points. For example, under section 4B(2A) of the Crimes Act the maximum fine that can be imposed by a court for an offence that carries a term of life imprisonment is only 2,000 penalty units. In contrast, Labor's amendment to section 233(2) equates 10 years imprisonment with 5,000 penalty units. Perhaps Labor is advocating that a life sentence is equal to 4 years imprisonment. Is this another Latham social initiative?

Labor should be well aware that drafting criminal offences and penalties requires careful consideration and that there has to be consistency across the Commonwealth so that the penalty appropriately fits the crime. Given the Labor Party's involvement, when it was in government, in the development of the Criminal Code, this is a sheer mockery of our legal system and a shameful attempt to deceive the Australian people. I might point out that Labor is also proposing a tenfold increase in fines generally, from the order of $10,000 to the order of $100,000. Given that most of the offenders are noncitizens from Third World countries, $100,000 is simply not an understandable figure to be a deterrent. The question must be asked: does Labor really not understand how people in poverty think, or does Labor simply feel that this is good for the all-important three-second sound bite?

The proposed offence where a people smuggler causes the death of a noncitizen while bringing them to Australia—that is, proposed new section 233AA—is superfluous. If such an offence were currently committed within Australian territorial waters, state or territory offences of murder or manslaughter would apply and these carry the same penalty range. If such an offence is committed outside Australian waters, the Criminal Code already deals with causing death in the context of extraterritorial people-smuggling. The existing offence carries a maximum 20-year penalty. Again, where does Labor add value?

Similarly, the proposed offence of assisting a people smuggler to evade prosecution—that is, proposed new section 233AB—does not add anything to the range of offences that can be applied, since aiding escape and accessory after the fact are already well-defined offences. The proposed offence of financial support for people-smuggling operations—that is, Labor's proposed new section 233AC—is actually less stringent than existing measures. Money laundering, for example, carries a maximum penalty of 25 years or 1,500 penalty points. Therefore, these Labor amendments are mere grandstanding. They are simply a disgraceful attempt to score political points.

Existing people-smuggling offences are proving effective. Since 22 July 1999, 459 prosecutions have been finalised, resulting in 437 convictions of crew members under these offences. In addition, there have been 10 convictions of people smugglers, and another 11 cases are pending. Labor should be supporting this bill, which will provide some necessary and sensible measures in the interests of protecting the integrity of our migration processes.

The second set of Labor amendments introduces a schedule 7 to the bill. In fact, Labor seems to be introducing two lots of schedule 7. Maybe this is simply another manifestation of the confusion Labor engenders whenever it has to take a policy position. One of these versions of schedule 7—that is, the one on sheet 2858—is subtitled `Immigration Detention—Special Arrangements for Children'. The other, on sheet 4195, is subtitled `Amendment of Migration Regulations 1994' and purports to establish a two-year regime for temporary protection visas. I do not quite see the point of the second of these schedules, and I think the best I can do is ignore it. But the proposals contained in the first of these schedules are rather fun to analyse.

These are best characterised as smoke-and-mirror tricks which allow Labor to offer up a bowdlerised version of measures that are already in place but which are so hedged about as to seriously compromise the integrity and effectiveness of the system. For example, the proposed section 197D provides that `as soon as possible' an unaccompanied child must be released into the care of a foster family or other guardian. This is already done. The amendment is absolutely not necessary. The minister for immigration has an ultimate and unambiguous duty of care to such a child under the Immigration (Guardianship of Children) Act. Does Labor intend to remove this responsibility from the minister? This amendment implies that. Who then should have that duty of care in law? This is no small matter, not even to the Labor Party.

In summary, the government has successfully met the challenge posed by international people smugglers. Last Tuesday Minister Vanstone announced a 50 per cent increase in Australia's offshore refugee resettlement program—the program that assists those refugees whose status is absolutely clear and who are most in need of assisted resettlement. This is proof, if any proof is needed, that our anti-people-smuggling strategy is working. Labor should take note of that fact and act responsibly for once.